Fundamentally Flawed —
Gun Ban Ideology

by: Kim Weissman
August 26, 2001

"…let me state unequivocally my view that the text and the
original intent of the Second Amendment clearly protect the right of individuals to keep
and bear firearms."— Attorney General John Ashcroft, in a letter to the N.R.A.'s Institute
for Legislative Action.

Because of Ashcroft's deviation from politically
correct dogma, Common Cause and the Brady Center to Prevent Gun Violence have filed an
ethics complaint against the Attorney General, claiming that his "interpretation
directly contradicts the stated position of his client, the United States of America, on
the meaning of the Second Amendment." Their complaint specifically refers to the case
of United States v. Emerson [see below], now on appeal in the Fifth Circuit Court
of Appeals, in which the Clinton administration explicitly denied that such an individual
right exists.

In a press release announcing the ethics complaint, Common Cause president Scott
Harshbarger proclaimed, "What's at stake here is the integrity of the U.S. Department
of Justice." In their complaint, Common Cause and the Brady Center relied on an
opinion by Sam Dash, that Ashcroft's conduct was "an act of disloyalty to his client,
the United States". That would be the same Sam Dash who during Clinton's impeachment
resigned as ethics advisor to Independent Counsel Starr, and publicly criticized Starr for
accepting the invitation to testify before the House Judiciary Committee — was that
an act of loyalty to Starr? Apparently, consistency with a past attempt to subvert liberty
is more important than loyalty to the Constitution and to an oath of office to uphold the
Constitution. ("I believe it is clear that the Constitution protects the private
ownership of firearms for lawful purposes. …when I was sworn as Attorney General of
the United States, I took an oath to uphold and defend the Constitution. That
responsibility applies to all parts of the Constitution, including the Second
Amendment." — Attorney General John Ashcroft)

In July, the Violence Policy Center (VPC) issued a report titled "Shot
Full of Holes, Deconstructing John Ashcroft's Second Amendment". The ultimate
goal of gun ban extremists is to totally disarm all private individuals
— obviously believing that violent crime is the fault of honest people owning guns.
To accomplish this ultimate goal, gun banners believe that they must eliminate (or in
VPC's terminology, "deconstruct", the term fashionable in academia which means
using apparently logical arguments to "prove" that black is really white) the
Second Amendment. The VPC says that Ashcroft's letter "is an astonishingly inadequate
piece of legal reasoning and an exemplar of wishful, and at times bizarre, revisionist
history." A sign of the desperation of the VPC is their insulting attempt to equate
"The NRA and gun criminals" (the VPC apparently sees no difference between the
two) who "will seek to have the Second Amendment incorporated against the
states…". As though "gun criminals" care about the Constitutional
doctrine of incorporation. But the VPC's reliance on deconstructing Ashcroft and the
Second Amendment depends on a compound of fundamentally flawed ideas
about the nature of, and a massive expansion of the legitimate power of, government; and
as such carries implications that go far beyond the firearms issue and go to the
very essence of our individual liberty.

The argument of the gun banners is simple: Without the Second Amendment, there is no
individual right to keep and bear arms. Thus "deconstruct" the Second Amendment,
and the individual right disappears. Given the wealth — and remarkable unanimity
— of the expressions of intent by the Founders of this country and by their
contemporaries, as well as philosophical discourses on the inherent right of
individual self defense extending back fifteen hundred years to Justinian's
"Digest of Roman Law", twisting the Second Amendment into a collective right
only, rather than an individual right, and nullifying the age-old right of self defense,
is a monumental and ultimately futile task. For even if the gun banners succeed in
hoodwinking a majority of the public with their collectivist interpretation of the Second
Amendment (a real possibility given the propaganda and the lack of discussion about the
requisites of individual liberty in education today), and even if they succeed in
convincing a majority of the people that they have no right to defend themselves or their
families or homes against criminal attack, the attempt to eliminate the Second Amendment
as a barrier to total civilian disarmament (with government alone retaining a monopoly of
force) is still fundamentally flawed.

Fundamental Flaw Number One:

To believe that without the Second Amendment there is no individual right to keep and
bear arms, one must believe that that right was granted to citizens by the Second
Amendment. It is basic to the Constitution
and the Bill of Rights, nor has it ever been questioned by any court or Constitutional
scholar, that the Bill of Rights did not grant any new rights — it protected
rights that already existed.

The First Amendment, for example, did not grant to citizens of the new nation a new
right to worship as they saw fit, a new right to freedom of speech, or a new
right to peaceably assemble — those rights already existed, and the First Amendment
merely protected those pre-existing rights. Since it is beyond dispute that individual
citizens did own firearms at the time the Bill of Rights was ratified, and did so
lawfully, the right of individuals to lawfully own firearms already existed.

A recent study by Michael Bellesiles (the methodology and data of which was seriously
questioned by other academics) attempted to prove, using inheritance and estate records
from the Revolutionary period, that the individual ownership of firearms at that time was
not as widespread as previously believed. But even Bellesiles did not attempt to claim
that nobody owned firearms at the time of the Revolution, or that everyone
who did own firearms, did so illegally. Such claims would clearly have been too ridiculous
even for die-hard gun banners to believe. So even if we grant Bellesiles' thesis that the
number was fewer than previously thought, even he would have to admit that there were at
least some private individuals who lawfully possessed firearms at the time of the
ratification of the Constitution and the Bill of Rights. Which means that the individual
right to keep and bear arms pre-existed the Second Amendment, and existed (then
and now) independently of the Second Amendment, which just added an additional layer of
protection to that right.

Fundamental Flaw Number Two:

Since the Second Amendment did not grant the individual right to keep and bear arms
(that right already existed), if we are to accept the gun banners' argument that the right
no longer exists we must ask: When was that right revoked?

If the federal government at some point revoked that individual right, it must have
done so by a law enacted by congress and signed by a president. And in order to enact a
law — any law — the federal government must have the legitimate authority
to do so. Where is that authority? Once again, we go back to the fundamental nature of the
Constitution.

When it was ratified, the Constitution created a new government for the United States,
replacing the form of government existing prior to 1787. Some delegates nominated to the
Constitutional Convention — Patrick Henry most prominent among them — refused to
attend that Convention, believing that the charter from the States under which the
delegates convened did not permit them to void the existing government. But if we are to
accept the present Constitution as valid at all, we must accept that those delegates in
Philadelphia in 1787 started from scratch and created a new government.

Since the gun banners' presume that the federal government at some point in time
exercised the power to revoke the individual right to keep and bear arms, we must ask:
What powers were in fact granted to the federal government when the Constitution was
ratified? To quote James Madison, the Father of the Constitution,

"The powers delegated...to the federal government are few and defined. Those which
are to remain in the state governments are numerous and indefinite. The former will be
exercised principally on the external objects. The powers reserved to the several states
will extend to all objects which...concern the lives, liberties, and properties of the
people." (Federalist # 45)

Those delegated powers are enumerated in the Constitution. To again quote Madison
("The Virginia Report" to the Virginia House of Delegates, 1799):

"If no such power be expressly delegated, and if it be not both necessary and
proper to carry into execution an express power; above all, if it be expressly forbidden,
by a declaratory amendment to the Constitution, the answer must be that the federal
government is destitute of all such authority." "…a fundamental and
characteristic principle of the Constitution, that all powers not given by it were
reserved; that no powers were given beyond those enumerated in the Constitution, and such
as were fairly incident to them…".

This is the heart of the issue — Where in the Constitution is the federal
government granted the authority to disarm individual citizens, who have not forfeited the
protection of the law by violating the law? Because if the Constitution did not
"expressly delegate" authority to the federal government to do something, then
"the federal government is destitute of all such authority". Where in the
Constitution is the federal government expressly delegated the authority to revoke the
individual right to keep and bear arms? The answer is — nowhere. So even if we grant
the assumption that at some point the federal government did revoke the individual right
to keep and bear arms, it is clear that such a revocation was wholly illegitimate,
and is thus null and void, because the federal government was never granted any such
authority.

But the gun banners like to say that they don't seek to revoke the right to keep and
bear arms, just to modify that right in the interest of public safety. They must
then be prepared to state unequivocally that they accept the individual right to keep and
bear arms. Are they willing to do so? On the contrary, their every argument in congress
and in the courts, and their public statements, prove that they refuse to acknowledge any
such right, and that a total ban is what they demand:

"Applying those same standards [consumer health and safety laws] to guns is the
real key… . Under these standards, handguns would be banned because of their high
risk and low utility." "…the answer to America's gun problem isn't trigger
locks, ‘smart' guns, or even licensing and registration. It's banning handguns."
— Violence Policy Center.

"…the Second Amendment confers a right to keep and bear arms only in
connection with service in a well-regulated militia-known today as the National
Guard." — League of Women Voters.

"This legislation…would prohibit the transfer or possession of handguns and
handgun ammunition…". — Congressman Major Owens.

"…we should ban all handguns…". — Senator John Chafee.

Fundamental Flaw Number Three:

It is clear that the individual right to keep and bear arms pre-existed the
Constitution and the Bill of Rights. It is clear that the Constitution did not grant to
the federal government the authority to revoke the individual right to keep and bear arms
(the federal government certainly has the raw power to enact any law it chooses regardless
of any Constitutional restraint on its authority, but when it does so — when it
legislates beyond its legitimate authority — it does so without Constitutional
legitimacy). So for the gun ban argument to have any validity at all, it must be assumed,
contrary to the explicit words of James Madison cited above, that the federal government
can legitimately take actions that go beyond the authority expressly delegated to it by
the Constitution, and beyond the powers both necessary and proper to carry into execution
those express powers.

What this means, according to gun banner logic, is that the Constitution is wholly
irrelevant to limit the powers that can be properly exercised by the federal government. This
is the most dangerous presumption of the whole argument, with implications for
the utter destruction of our freedom that go beyond the individual right to keep and bear
arms.

Simply put, this argument claims that the federal government has the legitimate
authority to do anything that it chooses to do. Anything at all
— what the Founders despised as the evil of "arbitrary" power. Thus we can
understand the anger of the gun ban totalitarians whenever a federal court constrains
arbitrary congressional power, or puts limits on the agenda to disarm honest individuals.
They want to deny federal court appointments to any judges who will limit the power of
congress — which means that they like the idea of a federal government of unlimited
power, a government with the arbitrary power to do anything at all. A government
unconstrained, that can do anything it wants, is an unaccountable government of raw
arbitrary power, and is not a government of laws. That is the very essence of
tyranny.